The Fourth District holds a court may not conduct an in camera review of attorney-client communications once the holder of the privilege makes a prima facie showing of privilege.
Robert Obarr worked closely with his assistant, Christi Torres Galla, and was represented by Attorney Kimes in a variety of matters. Obarr sold a piece of real property to two competing buyers, Pham and Westminster, and became involved in litigation with them on claims and cross-claims. Cheadle became the representative of Obarr’s estate after his death.
Pham’s counsel received Obarr’s attorney client communications from Galla, but failed to notify Cheadle and used them to oppose a summary adjudication motion. Pham argued Galla voluntarily provided the communications, one of which was not privileged. Obarr and Cheadle had waived the privilege by disclosing them to third parties, by failing to reasonably try to preserve the privilege, and by putting the communications at issue. Cheadle objected to the communications and sought Pham’s counsel’s disqualification.
Cheadle made a prima facie showing the communications were confidential attorney-client communications. However, the court reviewed them in camera and concluded the privilege did not apply because Kimes’s statements suggested he was not representing Obarr in the particular matter at issue. The court also ruled the communications were not privileged based on Evid. Code §§ 957, 960, and 961, which except certain communications by deceased persons.
The Court of Appeal agreed with Cheadle his prima facie showing the communications were confidential attorney-client communications was the end of the analysis, and the court should not have considered the contents of the communications.
The fundamental purpose of the attorney-client privilege is to safeguard the confidential relationship between attorney and client to promote the open discussion of all matters relating to the representation. The protection is absolute and prevents the disclosure of any part of a privileged communication regardless of its content or any particularized need for disclosure. A court’s determination is based on the existence of an attorney-client relationship when the communication was made, the intent of the client, and whether the communication emanates from the client.
Evid. Code § 915 specifically precludes inspection of the documents themselves to determine if the contents justify application of the privilege. Inspection is appropriate only if a court determines there has been a waiver, or, if an exception applies, the documents should nonetheless receive some level of protection.
Galla did not have authority to waive Obarr’s privilege. Her dissemination of the documents did not constitute waiver, which could only be waived by the holder, Cheadle. Galla’s declaration acknowledged the longstanding attorney-client relationship between Obarr and Kimes, and contained no information to allow the court to conclude Kimes did not represent Obarr in the transaction.
The statutory exceptions in Evid. Code §§ 957, 960, and 961 did not apply.
Section 957 provides the attorney-client privilege does not apply “to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.” Cheadle asserted Pham and Westminster made claims against Obarr, not through Obarr.
The 1965 Law Revision Commission Comments explain the underlying rationale of Evid. Code § 957 is that claimants in privity with the estate claim through the client, not adversely, and the deceased client presumably would want communications disclosed to effect testamentary intent. The 2009 Law Revision Commission reiterated this premise, and clarified the assumption did not apply to litigation involving claims against the decedent.
Westminster and Pham each made claims to title to property through Obarr based on inter vivos transactions, and against Obarr based on the dual transactions. The adverse claims precluded the application of the exception. Although the exception states it applies to inter vivos transactions, the court would not apply it where the inter vivos transaction resulted in claims against the estate, because it would defeat the purpose of the exception.
Evid. Code §§ 960 and 961 establish two related exceptions concerning a deceased client’s writing affecting an interest in property. Section 960 provides the privilege does not apply to “a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.” Section 961 states the privilege does not apply to “a communication relevant to an issue concerning the validity of a deed of conveyance, will, or other writing, executed by a client, now deceased, purporting to affect an interest in property.”
The Law Revision Commission Comments explain the exceptions are premised on the assumption a deceased client would want the lawyer to communicate or testify about a testator’s true intention in an unclear dispositive instrument. The statutory exceptions only apply where the lawyer is an attesting witness to a testamentary disposition. It is a narrow exception limited to the communications an ordinary attesting witness would testify to, not a wholesale exception for all communications about the attested document or related transaction. The communications Pham’s counsel obtained were not typical of matters an attesting witness would reveal.
The Court of Appeal rejected arguments that Cheadle waived the attorney-client privilege. Although Cheadle urged the Court to disqualify Pham’s counsel, the Court remanded the case to the trial court to make this determination.
An attorney has an ethical obligation to protect an opponent’s and third parties’ privileged and confidential information received by the attorney without a waiver. An attorney who inadvertently receives materials that appear to be privileged should not examine them more than necessary to determine if they are privileged, and immediately notify the sender and the holder of the privilege. The parties can resolve the situation by agreement or ask the court for guidance, protective orders, or other judicial intervention. This is the “State Fund rule” and establishes an objective reasonable standard of professional conduct. The court will consider whether a reasonably competent attorney would have identified the materials were privileged, how much review was necessary, and when the attorney’s review should have ended.
Exposure to confidential information alone does not require disqualification. On a motion to disqualify, the must exercise its discretion by considering all the circumstances, and balancing a party’s right to choice of counsel versus the need to maintain ethical standards of professional responsibility. The paramount concern is preservation of public trust in the scrupulous administration of justice and the integrity of the bar.
The Court directed the trial court on remand not to consider the content of the communications, only non-privileged information such as the identity of the holder of the privilege, whether an attorney-client relationship existed during the communications, and whether the client intended the communication to be confidential. As the holder of the privilege, Cheadle could request the court conduct an in camera review in deciding the disqualification motion.
Comment: California provides robust protection of the attorney-client privilege. Courts will not allow attorneys to take advantage of inadvertent disclosures, and attorneys who do so risk disqualification.